From Lubanga to Kony, is the ICC only after Africans?

The International Criminal Court’s first conviction of Congolese warlord Thomas Lubanga has reopened the debate on why the court has only tackled cases from Africa. But is that a fair charge?

In June 2009, just months after the Thomas Lubanga trial opened in the International Criminal Court (ICC), a group of former child soldiers and municipal officials in the northeastern Congolese district of Ituri - where Congolese warlord Lubanga operated - were shown a video of the ICC’s proceedings at separate screenings.

Recalling the incident nearly three years later - on the day Lubanga was convicted in the ICC’s first-ever ruling - Adam Hochschild, a leading expert on the Democratic Republic of Congo, said the reactions at the video screening were revealing.

“When it was shown to the municipal officials, one of them shook his head at the screen and remarked, [in French] ‘c’est justice à l’occidentale’. What they were seeing was basically, here is a black African being judged by three white judges,” recalled Hochschild - author of the acclaimed book on the Congo, “King Leopold’s Ghost” - who attended the screenings, in a phone interview with FRANCE 24.

Africans have featured prominently - some would say too prominently - on the ICC’s list of firsts. The court’s historic first conviction this week was against a Congolese warlord guilty of conscripting child soldiers. Its first arrest warrant, issued in 2005, was also for an African: Joseph Kony, the Ugandan leader of the Lord’s Resistance Army.

Kony has recently been the subject of a controversial social media campaign that has sparked debates on a host of related issues - including the fact that all of the ICC’s wanted men are from Africa.

African officials cry foul

Ten years ago, the ICC was set up as a tribunal of last resort to prosecute suspects from countries either unable or unwilling to do it themselves. The Hague-based court is currently conducting investigations in seven countries – all of them African.

It’s a fact that has not gone unnoticed – especially among African leaders. Rwandan President Paul Kagame once said the ICC was "put in place only for African countries". African Union Commission chief Jean Ping complained about Africa being made “an example to the world”.

The international legal community is keenly aware of this criticism – it was an important consideration during last year’s selection of a new ICC chief prosecutor.

In the end, Fatou Bensouda, a former Gambian justice minister, was the consensus choice to replace current chief prosecutor Luis Moreno-Ocampo following intense AU lobbying. She takes over from Moreno-Ocampo, an Argentinian, in June.

‘Super beings’ above the law

But beneath the rhetoric of discrimination – popular among some African leaders – lies the far more nuanced reality of the state of justice, politics and the relationship between the two on the continent.

Much has been made about the fact that the ICC’s 15 cases are all from seven African countries – Uganda, Democratic Republic of Congo, Sudan, Kenya, Central African Republic, Ivory Coast and Libya. But Karine Bonneau of the Paris-based International Federation for Human Rights notes that, “four of the seven states in Africa asked the court to investigate because they were unable to try senior figures in their countries.”

Some African commentators have called for “deep introspection” on the issue. Writing in the Kenyan newspaper, the Daily Nation, Erick Komolo, a Kenyan advocate and scholar at the University of Hong Kong, noted that, “The perception we have of our leaders as ‘super beings’ allows for unjust manipulation of public institutions, including elevating them above judicial systems. It also stimulates a false sense of ‘ethnic solidarity’”.

The ICC is currently investigating four Kenyans - including two 2012 presidential hopefuls - accused of crimes against humanity following the disputed 2007 election.

Avoiding the ‘big fish’ from ‘big countries’

But the problem of inordinately powerful leaders subverting justice is not exclusive to African nations.

In recent months, there have been growing calls for Syrian President Bashar al Assad’s regime to face an ICC trial after UN Human Rights Commissioner Navi Pillai recommended that Assad’s regime be referred to the ICC.

But Bonneau notes that there are several procedural hurdles to overcome for the ICC to take on the Syrian regime since Syria is not among the 120 countries that are state parties to the ICC.

“The ICC has no jurisdiction over Syria without a referral from the UN Security Council, which happened in the case of Libya. But Russia and China will oppose such a move,” explained Bonneau.

Syria is not the only country that has refused to be a state party to the ICC. Conspicuously absent in this list are countries such as the US, Russia, China, India and Israel.

The absence of three permanent UN Security Council members on the ICC state party list has led to criticism that the ICC offers a “victor’s justice”.

“The obvious problem is that the court will investigate small and medium fish because the big fish come from big countries,” said Hochschild. “The US will not be in court for its endorsement of torture in the Iraq War, or Russia for the war in Chechnya, or China for its actions in Tibet.”

In an attempt to broaden the gamut of ICC investigations, the office of the chief prosecutor is currently conducting preliminary examinations in Afghanistan, Colombia, Gaza, Georgia, Honduras and North Korea among other regions.

Critics of the ICC’s Africa bias also hope that with new chief prosecutor Fatou Bensouda in the job, the court will successfully broaden its scope.

Despite his criticism about the ICC, Hochschild concedes that the permanent international court at The Hague plays an important role and with its first-ever conviction of Congolese warlord Lubanga this week, the ICC has made a change.

“The positive thing is that many people in Ituri said the message of criminalising the use of child soldiers did get through. Warlords are now aware that they could be in court if they use child soldiers. People say that the effect of the trial is that you don’t see child soldiers around anymore – at least when ICC officials and people like me are in town, which was not the case earlier,” said Hochschild. “In the end, there is no better substitute for a working national justice system. But in its absence, we need institutions like the International Criminal Court.”